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District Court Brings BOGO-free Claim Into Focus

In this era of acronyms – OMG, YOLO, MAGA – add BOGO: as in “Buy One Get One” free. It’s a familiar offer that’s at the heart of a recent class action complaint brought by one Jennifer Mora, who claims to have made two buy-one-get-one-free purchases of eyeglasses from Visionworks of America (Visionworks), one of the country’s largest eyewear retailers.

Her amended complaint, filed in the Middle District of Florida in April 2018, pulled no punches. It quoted the company’s vice president of marketing to the effect that the word free is “a message that matters to consumers ... helping to drive sales.” According to Mora, Visionworks deceptively describes its offers as BOGO when, in fact, it inflates the purchase price for the first pair of glasses so that consumers mistakenly believe that they are getting a good deal.

Now You Don’t…

Mora claimed that Visionworks was making two offers: The BOGO offer, in which a second pair was given to the consumer after the purchase of the first, and an “unadvertised alternative,” in which consumers who did not want to take the BOGO offer received a 40 percent discount to one pair of glasses. The contrast between the two offers, she claimed, was a problem.

This contrast, the complaint alleges, “is evidence that the true regular price of a single pair of glasses, uninflated by the constant use of the word free, is actually 40% less than the price offered in the buy-one-get-one-free offer.” In short, Mora alleges that Visionworks increased the price of one pair of glasses in order to cover the cost of the second pair, which ultimately resulted in the customer paying more than the normal cost of one pair of glasses.

Here, it’s the consistent, lengthy use of the word “free” by Visionworks that becomes crucial. Mora claims that the company used the word in its ad campaigns over 48 weeks in 2014 and continued those ads into 2015 and beyond. “Since the word free is used continuously and repeatedly,” the complaint reads, “over time the price of a single pair of glasses inflates to cover both the first pair and the second, supposedly ‘free’ pair.”

Mora charged the company with unjust enrichment and violations of the Florida Deceptive and Unfair Trade Practices Act.

The Takeaway

Visionworks moved to dismiss the action shortly after Mora filed her complaint; the motion was denied shortly thereafter by the Middle District on May 2, 2018.

The court maintained that Mora’s allegations were detailed and factual and did not fail to state a claim as Visionworks had argued, and that the company was better off critiquing her claims at summary judgment after discovery was complete.

The court also cut short the company’s challenge that Mora could not bring her unjust enrichment charge because she already had an adequate remedy under the Florida Deceptive and Unfair Trade Practices Act. According to the court, Visionworks overlooked “the Federal Rules of Civil Procedure which explicitly provides that ‘[a] party may state as many claims or defenses as it has, regardless of consistency.’”

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